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Escobar v. Flores

April 7, 2010

KARLA CECELIA ESCOBAR, PLAINTIFF AND APPELLANT,
v.
CESAR FLORES, DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Mono County, Edward Forstenzer, Judge. Affirmed. (Super. Ct. No. 16581).

The opinion of the court was delivered by: Robie, J.

CERTIFIED FOR PUBLICATION

This appeal arises out of a petition filed by plaintiff Karla Cecelia Escobar (mother) under the Hague Convention on the Civil Aspects of International Child Abduction*fn1 (the Hague Convention or the Convention) for the return of her eight-year-old son, Cesar, to his habitual residence with her in Chile. The primary issue on appeal is whether the trial court erred in refusing to order defendant Cesar Flores (father) to return the child based on a finding that the child objected to being returned to Chile and had attained an age and degree of maturity at which it was appropriate to take account of his views. Finding no error in that finding, and no merit in the other arguments mother asserts on appeal, we will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Cesar was born in Reno, Nevada, on August 5, 2000, to mother and father, who were not (and have never been) married. According to father, at the time both parents were living in Mammoth Lakes, California. (Information in the record indicates both parties have relatives in Mammoth Lakes.)

In March 2004, father agreed that mother, who was not a legal resident of the United States, could take Cesar to Chile. Father claims mother was returning to Chile for only seven months, to visit family, and that Cesar was to return to the United States at the end of the visit, with or without mother. Mother claims that father knew she and Cesar were relocating to Chile and did not intend to return to the United States.

Father claims that after about six months, mother informed him she would not be returning to the United States. In 2005, mother obtained a custody order from a Chilean court. Father contends he did not receive notice of the Chilean custody proceeding. In any event, despite learning that mother did not intend to bring Cesar back to the United States, father did nothing to seek the return of the child from Chile under the Hague Convention.

From 2004 through 2008, Cesar resided with mother in Chile. Meanwhile, in 2005 father married and moved to North Carolina.

In August 2008, mother sent Cesar to visit with her sister in Mammoth Lakes. (Mother could not obtain a visa to enter the United States herself.) Father learned of the visit, traveled to Mammoth Lakes, and arranged for a visit with Cesar. On August 12, apparently during that visit, father filed a petition in Mono County to establish his parental relationship with Cesar (case No. 16581) and obtained an order in that case granting him temporary custody of Cesar, along with the right to take Cesar with him back to North Carolina until the next hearing.

Ten days later, on August 22, mother filed in Mono County her petition under the Hague Convention for the return of Cesar to Chile. The petition was originally filed under the same case number as father's parental rights petition.

Father filed his response to mother's Hague Convention petition in September 2008. Among other things, father asserted the court should refuse to order the return of Cesar to Chile under an unnumbered provision in article 13 of the Convention that allows a court to "refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views."

A hearing on father's petition to establish his parental relationship with Cesar and on mother's petition under the Hague Convention was held on October 17, 2008. Neither party appeared personally. The court ordered that a separate case number be assigned to mother's petition (case No. 16523) and stayed the proceedings on father's petition. The court then granted mother's motion to continue the hearing on her petition to December.

The continued hearing was held on December 24, 2008. Mother was present; father appeared by telephone. Father's attorney conceded the amount of time Cesar lived with mother in Chile was sufficient to establish Chile as his country of habitual residence for purposes of the Hague Convention, and the court so found. After determining that neither party objected to venue or jurisdiction in Mono County, the court moved on to Cesar's objection to returning to Chile. The parties agreed to have the court question Cesar in chambers, but mother objected to the examination occurring over the telephone. The court agreed that interviewing Cesar by telephone would not be sufficient and continued the hearing to January so that father could bring Cesar to California.

The next hearing, with Cesar and both parents present, was held on January 9, 2009. At the outset, mother's attorney argued that the court should not interview Cesar because "the courts have all agreed that a nine-year-old is not of sufficient age of maturity to" object to return to his country of habitual residence. The court rejected that argument, and mother's attorney then asserted that he wanted to offer evidence of "coaching or undue influence on" Cesar, including a statement allegedly made by father's attorney just that morning. The court decided to hear that evidence immediately.

The first witness, Maria Alejandra Kaiser, testified that when she was two or three feet away from Cesar outside the courtroom waiting for the hearing to start, she heard father's wife talking to Cesar about having to talk to the judge and then heard father's attorney say to the child, "`Did you talk to your dad about you have to say to the Judge you don't want to leave the U.S. or the states,' something like that."

The second witness, Pedro Escobar (mother's uncle), testified that when he was at the courthouse "this past Wednesday" he heard mother call to Cesar and heard father say to the child, "`Tell her that you don't want to.'" He also testified, however, that father did not prevent mother from visiting with and talking to Cesar, and she hugged the child and told him, "`Please don't be lying, don't be doing this.'" As father's attorney tried, on cross-examination, to get the witness to admit the visit between mother and Cesar lasted at least 10 minutes, the court interrupted, saying, "I just think this is de minimis in terms of any evidence of coaching. I am not sure any further cross-examination is of any benefit."

When mother's attorney told the court he had no further witnesses except mother, the court said, "I just don't see this as evidence of coaching.... Let's get back to the real issues," by which the court meant the incident to which Kaiser had testified. On that issue, father called his wife, Krista Marie Flores, to testify, and she testified that Cesar was "very upset about everything going on," and they tried to calm him. She said that father's attorney asked Cesar, "`Have you talked to your father about what you want to do and what you want to talk to the Judge about?'" She further testified that "[t]he only thing [they had] been telling [Cesar was] he knows what he wants and he has to do what's best for him, and to tell the Judge what's in his heart, and not worry about [her] or his father or what his mother thinks, he has to tell what's in his heart." She said neither she nor father's attorney told Cesar that morning that he was "to tell the Judge he does not want to go to Chil[e]," but Cesar had "stated that multiple times on his own."

Mother's attorney indicated that mother would testify about "how the child had been acting along this last four months, and [how] in her views [sic] this child has changed towards her" as evidence of coaching, but the court decided to take that testimony after the interview with Cesar, which the court decided (without objection) to conduct in chambers, with the attorneys, bailiff, court clerk, and court reporter present.

In chambers, Cesar told the court he was not afraid and that he lived in North Carolina, where he was in third grade at Wrightsboro Elementary School. He liked math and recess and had eight or nine friends, including one in his class and one next door. Before he lived in North Carolina, he lived in Chile, in the city of Valparaiso, where he did not like school because it was "a little boring." When the court asked him if anybody had told him what to say, he responded, "Yes, that it was in my heart." When the court asked him what was in his heart, he said, "That I want to stay here" "[b]ecause I have my, I like my house" "[a]nd I like to live with my sister and with my dad. And I like my school. I have many friends. And we go to many places there, like the beach and aquarium and YMCA."

When the court asked Cesar to tell him about Chile, Cesar responded, "I don't have many friends. I just had one close to my house. And I didn't have my own room, my TV, and my own bed. And my mom leaves me alone in the house when she is come to work, and I watch TV when she is not there. And she makes me go shop night and day by myself." Cesar said he would feel "[b]ad" if he ...


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